5 November 2024 (*)

( Interim relief – Public supply contracts – Tendering procedure – Publication of a call for tenders – Application for suspension of operation of a measure – Failure to comply with procedural requirements – Inadmissibility )

In Case T‑408/24 R,

Intrawork OÜ,

Recruitment Estonia OÜ,

Advokaadibüroo Sorainen OÜ,

represented by C. Ginter and M. Sõrm, lawyers,

applicants,

European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA),

represented by M. Chiodi, acting as Agent, and by E. van Nuffel d’Heynsbroeck, A. Guillerme and F. Patuelli, lawyers,

defendant,

makes the following

By their application under Articles 278 and 279 TFEU, the applicants, Intrawork OÜ, Recruitment Estonia OÜ and Advokaadibüroo Sorainen OÜ, seek, in essence, suspension of the operation of the decision of the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) of 19 June 2024 to issue a call for tenders in open procedure No 361026-2024 (‘the contested decision’), until the Court has delivered a final decision in the main proceedings.

Background to the dispute and forms of order sought by the parties

The applicants are companies governed by Estonian law.

On 6 December 2022, eu-LISA issued a call for tenders in open procedure No 693661-2022, divided into two lots.

On 21 September 2023, the consortium formed by the applicants was informed that it had been awarded, together with two other entities, Lot 2 of that call for tenders, issued by eu-LISA for the provision of ‘non-ICT consultancy services’.

The estimated value of the call for tenders for ‘non-ICT consultancy services’ amounted to EUR 18 384 623 over a period of three years, with the possibility of renewal for a period of 12 months.

On 8 November 2023, framework contract LISA/2022/OP/04/02 was signed by the applicants.

On 19 June 2024, by a contract notice published in the Supplement to the Official Journal of the European Union (OJ 2024 S 118), eu-LISA issued a call for tenders in open procedure No 361026-2024.

The purpose of that call for tenders, comprising two lots, is the provision of supply services of personnel, including temporary staff, in Estonia. The estimated value of Lot 1, entitled ‘Provision of temporary work agency services for eu-LISA in Estonia’, is EUR 41 268 763. The estimated value of Lot 2, entitled ‘Provision of temporary work agency services for eu-LISA in France’, is EUR 23 997 379.

The deadline for the submission of tenders was set at 12 August 2024.

By application lodged at the Court Registry on 6 August 2024, the applicants brought an action for annulment of the contested decision.

By a separate document, lodged at the Court Registry on the same date, the applicants brought the present application for interim measures, in which they claim that the President of the General Court should:

–suspend the tender procedure initiated by eu-LISA with the call for tenders No 361026-2024 until the Court’s decision in the main action enters into force;

–grant the application for interim measures under Article 157(2) of the Rules of Procedure of the General Court;

–order eu-LISA to pay the costs.

In its observations on the application for interim measures, lodged at the Court Registry on 21 August 2024, eu-LISA contends that the President of the General Court should:

–dismiss the application for interim measures as manifestly inadmissible; or

–dismiss the application for interim measures as manifestly unfounded;

–order the applicants to pay the costs.

On 3 September 2024, the applicants lodged their observations on eu-LISA’s observations at the Court Registry.

Law

It is apparent from Articles 278 and 279 TFEU read in conjunction with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that operation of a measure challenged before the Court be suspended or prescribe any necessary interim measures, having regard to the rules of admissibility laid down in Article 156 of the Rules of Procedure of the General Court.

The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures are to ‘state the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.

The judge hearing an application for interim measures may order suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim measures is also to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).

Furthermore, under Article 156(5) and Article 76(d) of the Rules of Procedure, an application for interim measures must, in particular, be made by a separate document, indicate the subject matter of the proceedings and contain a summary of the pleas in law and arguments relied on.

It follows from a combined reading of Article 156(4) and (5) and Article 76(d) of the Rules of Procedure that an application for interim measures must be sufficient in itself to enable the defendant to prepare its observations and the judge hearing the application to rule on it, where necessary, without other supporting information. In order to ensure legal certainty and the proper administration of justice, it is necessary, if such an application is to be admissible, that the essential elements of fact and law on which it is founded be set out coherently and comprehensibly in the application for interim measures itself. While the application may be supported and supplemented on specific points by references to particular passages in documents which are annexed to it, a general reference to other written documentation, even if annexed to the application for interim measures, cannot make up for the absence of essential elements in that application (see order of 4 December 2015, E-Control v ACER, T‑671/15 R, not published, EU:T:2015:975, paragraph 8 and the case-law cited).

Furthermore, point 223 of the Practice Rules for the Implementation of the Rules of Procedure then applicable expressly states that the application for interim measures must be intelligible in itself, without necessitating reference to the application lodged in the main proceedings, including the annexes thereto.

Since failure to comply with the Rules of Procedure constitutes an absolute bar to proceeding with a case, it is for the judge hearing the application for interim measures to examine of his or her own motion, if necessary, whether the applicable provisions of those rules have been complied with (see order of 14 February 2020, Vizzone v Commission, T‑658/19 R, not published, EU:T:2020:71, paragraph 11 and the case-law cited).

In the present case, it must be noted that the applicants’ arguments concerning the condition relating to a prima facie case are incomplete. While, in those arguments, the applicants describe at length the factual situation and the alleged adverse effects on them in so far as the subject matter of the first call for tenders and that of the second call for tenders overlap, they do not mention any provision of EU law that eu-LISA infringed by issuing the second call for tenders. They merely rely on a prohibition on issuing a new call for tenders on the basis of the ‘raison d’être of framework agreements’ which prohibits a contracting authority from being able to issue ‘an additional procurement for services largely covered by the existing framework agreement’. Other than that reference to the ‘raison d’être of framework agreements’, the applicants refer only to recital 60 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65) in order to claim that framework agreements are closed systems.

Such arguments, without any indication of a specific legal basis, are not sufficient to satisfy the requirements of the first sentence of Article 156(4) of the Rules of Procedure, which provides that applications for interim measures must state, inter alia, the pleas in law establishing a prima facie case for the interim measure applied for.

Thus, the statements made by the applicants to satisfy the condition relating to a prima facie case do not enable the judge hearing the application for interim measures to assess whether the contested decision is, prima facie, vitiated by irregularities and whether there is a prima facie case in favour of the applicants.

That absence of sufficient explanation, in the application for interim measures, of the constituent elements of a possible prima facie case cannot be compensated for by a reference to the application in the main proceedings.

In that regard, it is sufficient to note that it is not for the judge hearing the application for interim measures to seek, in place of the party concerned, those matters contained in the annexes or in the main application which would support the application for interim measures. For such an obligation to be imposed on the judge hearing the application for interim measures would, moreover, render ineffective the provision of the Rules of Procedure which requires that the application for interim measures be made by a separate document (see order of 29 July 2010, Cross Czech v Commission, T‑252/10 R, not published, EU:T:2010:323, paragraph 15 and the case-law cited).

It follows from all the foregoing that the present application for interim measures must be dismissed as inadmissible.

Under Article 158(5) of the Rules of Procedure, the costs are to be reserved.

On those grounds,

hereby orders:

1.The application for interim measures is dismissed.

2.The costs are reserved.

Luxembourg, 5 November 2024.

Registrar

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Language of the case: English.